2018 (5) TMI 1366 - AT - Service Tax

Refund claim - Relevant time - rejection on the ground that they have been filed beyond one year from the let export date as mandated under N/N. 17/2009-ST - Held that - the relevant date will have to be adjudged as per the provisions of Section 11B of the Central Excise Act, 1944. In particular portion (A)(i) of the Explanation to Section 11B ibid, namely the date on which the ship in which the goods are loaded leaves India. Matter remanded to the adjudicating authority for the limited purpose of ascertaining whether the refund claims in these two shipping bills have indeed been filed within a period of one year from the date on which the concerned ship left India - appeal allowed by way of remand.

Summary

Issues:
- Determination of relevant date for filing refund under Notification 17/2009-ST in the case of exported goods.

Analysis:
The case involved a dispute regarding the relevant date for filing a refund claim under Notification 17/2009-ST concerning the export of iron ore by M/s. Trimex Industries Ltd. The original authority rejected the refund claim as time-barred since it was filed beyond one year from the "let export" date as required by the notification. The lower appellate authority upheld this decision, leading the appellants to approach the Tribunal for redress.

The central issue revolved around identifying the correct "relevant date" for filing the refund claim, whether as prescribed under Notification 17/2009-ST or as per the provisions of Section 11B of the Central Excise Act, 1944. The comparison of the relevant dates under these two provisions was crucial for the resolution of the matter. The Tribunal referred to the case law of ITW Signode India Ltd. Vs. Collector of Central Excise, which emphasized that in case of a conflict between the substantive provision of an act and delegated legislation, the former shall prevail. Additionally, the Tribunal cited the judgment in Bimetal Bearing Ltd. Vs. Commissioner of Central Excise, Chennai, which highlighted that the scope of a statutory provision cannot be altered by circulars or instructions.

After thorough consideration, the Tribunal concluded that the relevant date for determining the refund claim should be as per the provisions of Section 11B of the Central Excise Act, 1944. Specifically, the date on which the ship carrying the goods left India was deemed as the relevant date. The Tribunal ordered a remand of the matter to the adjudicating authority to verify whether the refund claims were filed within one year from the date the ship departed from India. If the claims met this criterion, the refund would be sanctioned, subject to other provisions of Section 11B. Consequently, the impugned order was set aside, and the appeal was allowed by way of remand.